I didn’t cover it at the time, but back in March a three-judge panel of the Army CCA published a significant opinion about unsworn statements in United States v. Martinez, 76 M.J. 541 (A. Ct. Crim. App. Mar. 13, 2017), rev. denied. 76 M.J. __ (C.A.A.F. Jun. 22, 2017) (link to slip op.).

Unsworn statements are a unique feature of military law. “The right of an accused to make an unsworn statement is long-standing, predating adoption of the UCMJ. Among other things, the unsworn statement is an opportunity for an accused to bring information to the attention of the members or a military judge, including matters in extenuation, mitigation, and rebuttal, without ordinary evidentiary constraints.” United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005) (citing United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998)).

the statement is not evidence but a personal declaration or defen[s]e, and cannot legally be acted upon as evidence either by the court or reviewing authority. Nor can it be a vehicle of evidence, or properly embrace documents or other writings, or even averments of material facts, which, if duly introduced, would be evidence; and if such are embraced in it, they are no more evidence than any other part.

W. Winthrop, Military Law and Precedents at 300.

In Martinez, the accused pleaded guilty and stipulated to the relevant facts of his offenses. Then:

At the conclusion of the defense’s sentencing case, the defense attorney informed the military judge that appellant would be making an unsworn statement which would come in two parts. One part would be an oral statement from appellant. The other part would be given by counsel. Counsel’s statement, however, consisted of reading a letter from appellant’s pastor into the record.

Slip op. at 2. The prosecution objected to reading the letter as part of the unsworn statement, the military judge sustained the objection, and the Army CCA affirmed.

Writing for the panel, Judge Wolfe explained that:

The issue this case presents is that the unsworn statement being offered was not authenticated, was hearsay, and was not from the accused.

Simply stated, appellant’s argument is that the nearly unfettered right of an accused to make an unsworn statement includes the right to introduce the statements of others. There would not appear to be any logical limitation to this understanding.

Slip op. at 3 (emphasis in original). And he concluded:

If appellant is correct and counsel may read the statement of a third person into the record as part of an accused’s unsworn statement without moving to relax the rules of evidence, then the entire balance struck by the architecture of R.C.M. 1001 becomes unhinged. Many an accused would choose to introduce the entire defense sentencing case through their accused’s unsworn statement. Such statements are not subject to cross-examination and as “statements by the accused” are not even subject to discovery. See R.C.M. 701. We find that whatever the exceptions to the Military Rules of Evidence and Rules for Courts-Martial that might apply to an accused’s unsworn statement, they are not so large as to swallow the rules themselves.

Slip op. at 5 (emphasis added).

In reaching this conclusion Judge Wolfe noted that R.C.M. 1001(c)(2) specifically addresses an unsworn statement “by the accused,” slip op. at 3, that CAAF has applied limits to unsworn statements, slip op. at 4 (citing cases), and that R.C.M. 1001(c)(3) allows an accused to relax the rules “to introduce sentencing evidence without strict adherence to the rules of evidence,” slip op. at 4. The military judge in Martinez gave the defense the opportunity to relax the rules to admit the pastor’s letter, but the defense declined to do so. Slip op. at 2.

This is an important decision because it’s easy to imagine the absurdity that would result if an unsworn statement were not limited to matters from the accused himself. Allowing an unsworn statement to include third-party materials would radically transform the nature of court-martial sentencing. The commentary accompanying Rule for Courts-Martial 1001 rightly observes that:

Sentencing procedures in Federal civilian courts can be followed in courts-martial only to a limited degree. Sentencing in courts-martial may be by the military judge or members. The military does not have – and it is not feasible to create – an independent, judicially supervised probation service to prepare presentence reports. [R.C.M. 1001] allows the presentation of much of the same information to the court-martial as would be contained in a presentence report, but it does so within the protections of an adversarial proceeding, to which rules of evidence apply, although they may be relaxed for some purposes.

Furthermore, with the recent Code and Rules changes that give alleged victims the ability to make unsworn statements, if an accused can smuggle in other materials then so can an alleged victim. An alleged victim actually has a stronger claim of right to make an unsworn statement than an accused, as a victim’s right to be reasonably heard in a sentencing hearing is statutory, see Article 6b(a)(4)(B), while an accused’s right to make an unsworn statement is merely rule-based.

Finally, there’s the matter of rebuttal. The prosecution may rebut statement of facts contained in an accused’s unsworn statement. See R.C.M. 1001(c)(2)(C). In Martinez, the defense wanted to read “a letter from appellant’s pastor” into the record. Slip op. at 2. That almost certainly would have waived any privilege applying to communications to clergy, allowing the prosecution to call the pastor as a witness in rebuttal to determine whether Martinez was really honest (and repentant) about his sexual assault of his own stepdaughter. See slip op. at 1-2.; Mil. R. Evid. 503; United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) (CAAFlog case page). It’s easy to imagine how dramatically that could have backfired on the defense, particularly considering that they made a tactical decision in this case to not relax the rules of evidence (suggesting that there were concerned about what the prosecution might presented if the rules were relaxed). See slip op. at 2 n.3.

21 Responses to “An important ACCA decision about an accused’s unsworn statement: it must be from the accused”

Introducing the entire “Good Solider Book” as an unsworn statement by the accused rather than through relaxed rules of evidence is a pretty common practice in the Army. Generally what defense counsel are taught is:

-Step 1: attempt to enter GSB without relaxing rules of evidence. 50-75% of time TC will not object.
-Step 2: attempt to enter GSB as unsworn statement.
-Step 3: relax rules of evidence to enter GSB.

Why not have all letters prepared IAW MRE 405.
Make sure they are giving an opinion of rehabilitative potential.
Offer them as evidence, and cite MRE 405 a why they are not objectionable.
The following language has been found acceptable by MJ’s.
“I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”.

I should also note, that if your letters are independently admissible under MRE 405, you don’t have to relax the rules of evidence to get them in.
If the prosecution objects to your client’s service record entries and awards–that’s too easy. You call the client to lay a foundation.
Done right, you don’t have to relax the rules most of the time IMHO–sure there are times when you have documents that need a certificate from the record holder.

I never relax the rules, it has the trappings of Pandora’s box. If the judge won’t let something in after I’ve tried everything, then I just let it stay out. The appellate issue probably has more impact than the evidence anyway.

The AF JAG School (at least when I went through), was teaching new JAGs to always object when defense counsel submitted and for defense counsel to go straight to relaxing the rules upon objection. This makes sense over some of the other methods, since the unsworn and its attachments aren’t evidence, and not everything in the Good Soldier Book (Good Airman Book?) will be matters which can be sworn to under MRE 405.

Philip D. Cave beat me to it Scott, but I’m going to elaborate on his point.

There’s nothing in a typical Good Soldier Book (consisting of service record documents, other documents, pictures, and letters of support) that can’t be actually admitted into evidence in a typical sentencing case. Mil. R. Evid. 405(c) permits proof of relevant traits of an accused’s character to be admitted by affidavit, but that only gets you so far. R.C.M. 1001(e)(1), however, allows the military judge to admit any evidence by means other than live testimony, and that could include an entire sentencing case. Documents may also be authenticated and admitted as business or public records. Pictures are, perhaps, the trickiest part, but their evidentiary value is much lower than their emotional value and so they might as well just be shown by the accused himself during the unsworn statement.

Introducing an entire Good Soldier Book through the unsworn statement, however, is a terrible idea. Not only should a military judge prohibit it (especially after Martinez), but it means that the materials are not evidence. Besides giving the prosecution the opportunity to highlight the unreliability of the not-evidence materials (and smart prosecutors will get the military judge to give an instruction to this effect), the not-evidence materials aren’t available for the CCA’s sentence-appropriateness review.

If it’s really common practice in the Army to introduce the Good Soldier Book as an unsworn statement, perhaps that explains why the Army CCA seems to so rarely give any meaningful sentence relief.

Now it’s certainly harder for defense counsel to put together a real sentencing case consisting of real evidence than it is to just collect a bunch of letters and pictures and slime them into the record, but it’s in the client’s best interests and in the interests of justice to do it right.

As for affidavits, 28 U.S.C. § 1746 provides the format for an unsworn (but written) statement to be admissible as an affidavit, etc.

It’s more effort to put together a “Good Soldier Book” that can be admitted without relaxing the rules of evidence, but not necessarily harder. Similar to sex offender registration–find out where the client intends to live, print out the law in that state, then ask MJ to take judicial notice of the law. Perhaps get someone to testify/submit affidavit verifying accused intends to live in that area. Military retirement–get someone to calculate what they have to lose with military retirement.

In my Army practice, I’ve never the GSB as part of the unsworn. I’d say 70% of the time, it was put into evidence without objection, and 30% of the time there was an objection, rules of evidence were relaxed, and then it was put into evidence, but the Government did not take advantage of the relaxed rules. Not saying the Government never takes advantage of the relaxed rules, but I can’t recall it ever happening. I have seen objections when the attorney or the accused (convicted, at that point) talks about the SOR, but I think that’s another story/case altogether.

I’ve never been able to get SORNA information in as substantive evidence because the MJs have always ruled that they are not matters to consider and hence irrelevant. The only way I have ever seen it get in is thru the unsworn statement, which always raises the Talkington instruction. I’d frequently get the same pushback on the effects of the BCD/DD, too, on the grounds that “it’s too complicated to try and figure out the various impacts.”

The Court’s decision in Martinez states – erroneously imho – the following at page 3:

First, the plain language of the rule limits an unsworn statement to that of the accused. R.C.M. 1001(c)(2) provides for an unsworn statement “by the accused.” Even when such statements are made through counsel they remain a statement “by the accused” through his or her agent.

But, that’s not what the MCM states. RCM 502(d)(6), Discussion (B) [Yes, I know that the Discussion commentary is just that and not the “law,” but it is persuasive commentary]:

Defense counsel must explain to the accused . . . the rights to present evidence during sentencing and the rights of the accused to testify under oath, make an unsworn statement, and have counsel make a statement on behalf of the accused. [Emphasis added].

RCM 1001(c)(2)(C), states: “The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both. [Emphasis added].” And the “script” at RCM App. 8, at A8-17, states:

You may make an unsworn statement orally or in writing, personally, or through your counsel, or you may use a combination of these ways. [Emphasis added].

The limitation imputed by the Martinez opinion, goes beyond the sentencing scheme of the MCM. But, even if it does not, as Phil notes above, the letter may have been admissible under MRE 405. The problem here is that the opinion leaves out a key component necessary for any meaningful analysis. Here’s what it says at page 2:

The government objected to reading a letter from someone who was not the accused as part of a statement by the accused. The government also objected to reading the letter on the grounds of hearsay and authenticity. The military judge sustained the government’s objection.

The opinion does not state directly or indirectly, how Defense Counsel responded to the government’s objections, e.g., did s/he claim it was a lay opinion under MRE 701, authenticating the document under MRE 901(a) and MRE 903, etc. And something that many MJ’s and TC’s may have forgotten, is that per RCM 1001(c)(2)(A), “The accused may testify, make an unsworn statement, or both in extenuation and mitigation . . . .”

Finally, while frequently objected to, and many time sustained because DC’s failed to respond properly, “collateral consequences” are not per se precluded by RCM 1001(c)(B), as a matter in mitigation “or to furnish grounds for a recommendation of clemency.” Thus, e.g., if your client is an officer who is a serious hunter, asking the Court to judicially notice the collateral consequence that 18 USC 922(g)(6), mandates for anyone who “has been discharged from the Armed Forces under dishonorable conditions” by prohibiting them from even possessing a firearm, is something that a competent and effective DC will do – or at least attempt to do. Or if the accused is not a US citizen, the immigration (collateral) consequences may be paramount as the Denedo litigation some years back pointed out.

SORA/SORNA issues are another matter altogether and you may have an ethical obligation to try and litigate that, especially if your client is from Colorado where a federal judge just declared their SORA statute unconstitutional as applied to 3 “registrants” who challenged it.

I’ve seen all sorts of things admitted through the unsworn. I once had a MJ tell me directly that if the gov objected to me submitting mental health records to just do it through the unsworn and she’d consider it. So of course I did just that.

And of course, I’ve often seen the GSB admitted through the unsworn, particularly in JA cases, but also in panel cases.

There’s nothing “absurd” with any of that Zach, and you’ve already listed the Gov solution to any “absurdities,” the ability to rebut any statements of fact contained in the unsworn. So given that ability, what’s the problem?

If he wants to enter this or that letter in the GSB, an accused risks as you said the gov bringing in that witness to cross examine them on it if it contains rebuttable facts (although since most letters are usually opinions about character or rehab potential, not sure there are really a lot of facts contained in most GSB…and the ones that are, usually are matters of record (awards, certificates, etc).

stewie, I think you are downplaying the significance of admission through the unsworn a little too much. If the sentencing package is brought in through the unsworn, then the government is greatly limited in what it can do. Frequently, the government’s response to the defense’s sentencing evidence is less about rebutting specific facts and more about challenging character opinions (particularly when “did you know/have you heard questions” can bring in uncharged misconduct). As the latter cannot be done if the package is admitted through the unsworn, your “solution” to any absurdities is inadequate.

Kettle those are wasted questions. The panel knows the severity of the convictions and either the letters indicate that the writer does or does not. Easy enough for gov to address either way and easy enough to comment on how the letter doesn’t note this or that.

So, I guess you agree that the Government can introduce third party statements in the victim’s unsworn statement during sentencing, too?

I get that a letter from a pastor probably ain’t going do a whole lot to change a panel member’s opinion of someone convicted of child sexual abuse. And, I get that Government can effectively argue around the third party hearsay. And, I’ll even add that the Government should just acquiesce and allow the DC to introduce the letter to save a possible appellate issue because the letter isn’t going to make much difference.

But, as to the pure issue of the admissibility of this letter, Zack/Black is correct. Kettle brings up the good point of impeachment, which I would argue that questions regarding the credibility of witnesses are rarely wasted. And, just because some MJ does something does not make it right. (It strongly appears that your MJ did it improperly according to ACCA.) How many MJ’s have read the 413 instruction on charged conduct? You either get to relax the rules or you don’t get the letter in until you comply with the Military Rules of Evidence.

DP: concur; when I first read the analysis, I was wondering how this opinion would have affected my old practice as a defense counsel of having an unsworn Q&A of my client (which, instructions aside, looks an awful lot like testimony to a panel), usually wrapping up with, “Is there anything else you’d like to say?” and handing it over to the client to give their (practiced) soliloquy. The court omitted discussion of that part of the rule, but I don’t view this as overriding the rule.

As far as a preacher’s letter being part of the unsworn: well, of course it’s not, and it makes zero sense for a DC to have gone this route. Put it in the Good Soldier/Airman/Sailor/Marine/Coastie/PHS/NOAA/whatever book and deal with the relaxed rules if you want it in.

I once got unsworn video statements from a client’s family admitted as sentencing evidence. I don’t recall that the TC ever objected, but if they did, I’m sure I asked for relaxed rules. Of course, I was saving the government (and the family) the trouble of flying into theater for the downrange court-martial, so at the end of the day, everyone got what they wanted. Well, maybe not my client, but we minimized the damage as best we could.

Unsworn statements are not an unique feature of military jurisprudence. The right of allocution for the convicted accused is well accepted at common law and is expressly provided for in federal court. For whatever reason it’s just not often availed of. Most states acknowledge it and in federal court it is covered under FRCP 32(i)(4).

Am I concerned about an unsworn priest letter being in an unsworn victim statement? Nope. Do I think it likely to happen? Nope. What is it going to say? There isn’t a credibility issue, the panel already believed her.

Do I think there’s credibility mining to be done in the letter in the unsworn? Not really no. It either says one of two things: I know what the accused did but I still think X, or it’s silent. Either way, the response by the government is exactly the same as it would be if the witness testified…either, by establishing that the witness was not aware, or by establishing that even though the accused did horrible thing X, the witness still things good things and thus you should ignore it.

Sentencing is about the accused primarily with some aggravation but that’s restricted to the government far more than mitigation and extenuation is to the defense. For good reasons.

As Lieber says, we see this stuff in the civilian world, and guess what else we see in civilian sentencing…third party information in the sentence report done for sentencing. Gasp, oh no!

And I agree with DP, the court isn’t correct, the unsworn can come from the accused or the counsel or both. In fact, I’ve never done an unsworn that did not involve me talking, and I rarely failed to beat the deal, sometimes pretty significantly because I was able to craft an unsworn that combined the accused repeatedly taking responsibility with my listing out all of their positives or introducing other evidence (like the mental health records)…and I don’t think I ever relaxed the rules to do it…because the rules to some extent are ALREADY relaxed by the fact that sentencing is by it’s very nature about learning about relevant mitigation evidence.

If you want to start treating it like the rules of evidence fully and absolutely apply, then right to confrontation?

I mean I’m not at this moment a DC so can’t speak currently, but I cannot remember a time when an unsworn I did, did not involve the accused speaking initially to apologize and take blame, followed by my speaking to have the accused (reluctantly) respond yes to any positive character traits I brought up followed by the accused speaking again at the end to again say how much he or she were an awful person/sucked/was sorry. It worked pretty darn well and no one was surprised or shocked at the pattern because it’s not like I invented it or came up with something novel.

I once had to do an unsworn all by myself because the accused was in a complete I suck frame of mind (for a pretty minor crime) and initially would not participate in sentencing at all. Eventually literally the day of the GP, he agreed to have me present his unsworn on his behalf, but still refused to speak. Obviously, it wasn’t filled with much, but it was better than sitting silent for sure.

So is it common? I only have my narrow slice to comment on, but I wasn’t the only one doing it, and I’ve seen others doing it, and it certainly makes more sense then another version I’ve seen far too frequently which involves the accused talking about all the great things he or she has done with an apology buried somewhere in the middle.

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